Ellison v The King
[2023] VSCA 115
•16 May 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0129 |
| DANIEL ELLISON | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 16 May 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 115 |
| JUDGMENT APPEALED FROM: | [2022] VCC 1341 (Judge Maidment) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Knowingly dealing with proceeds of crime ($298,820), possessing drug of dependence, trafficking drug of dependence – TES 3 years and 4 months, NPP 2 years and 3 months – Knowingly dealing with proceeds of crime sentence of 2 years and 10 months – Manifest excess – Whether sentence of 2 years and 10 months for knowingly dealing with proceeds of crime manifestly excessive – Complaint of manifest excess not reasonably arguable – No prospect of TES being reduced – Application for leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr N Howard | ||
| Respondent: | Mr J McWilliams | ||
Solicitors | |||
| Applicant: | Victoria Legal Aid | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA:
On 10 August 2022, the applicant pleaded guilty in the County Court to one charge of knowingly dealing with the proceeds of crime,[1] three charges of possession of a drug of dependence,[2] one charge of trafficking in a drug of dependence,[3] one charge of committing an indictable offence while on bail[4] and one charge of contravening a conduct condition of bail.[5] On 15 August 2022, he was sentenced as follows:
[1]Contrary to s 194(2) of the Crimes Act 1958.
[2]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.
[3]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981.
[4]Contrary to s 30B of the Bail Act 1977.
[5]Contrary to s 30A of the Bail Act 1977.
| Charge | Offence | Maximum | Sentence | Cumulation |
| Indictment M11655600 | ||||
| 1 | Knowingly dealing with the proceeds of crime | 15 years | 2 years and 10 months | Base |
| 2 | Possession of a drug of dependence | 5 years | 4 months | 4 months |
| 3 | Possession of a drug of dependence | 5 penalty units[6] | $100 fine | – |
| 4 | Possession of a drug of dependence | 5 years | 2 months | 2 months |
| 5 | Trafficking in a drug of dependence | 15 years | 27 months | 6 months |
| Related Summary Offences | ||||
| 7 | Committing an indictable offence while on bail | 3 months | $900 fine | – |
| 8 | Contravening a conduct condition of bail | 3 months | $100 fine | – |
| Total Effective Sentence: | 3 years and 4 months | |||
| Non-Parole Period: | 2 years and 3 months | |||
| Pre-sentence Detention: | 374 days | |||
| Section 6AAA Statement: | 5 years, with a non-parole period of 3 years and 5 months | |||
[6]The maximum penalty for this offence of possessing a drug of dependence was only 5 penalty units because the sentencing judge was satisfied on the balance of probabilities that the offence was committed in relation to a quantity of cannabis that was not more than the small quantity applicable to that drug (50g): see s 73(1)(a) of the Drugs, Poisons and Controlled Substances Act 1981.
The applicant now seeks leave to appeal against sentence on the following proposed ground:
1. The sentence imposed on charge 1 is manifestly excessive.
Particulars
(a)Plea of guilty at the earliest possible opportunity;
(b)significant utilitarian benefit;
(c)remorse;
(d)prospects of rehabilitation;
(e)conditions of incarceration;
(f)mental health, cognitive functioning and impairment; and
(g)delay.
Circumstances of the offending
On 6 August 2021, the applicant was observed attending an address which was the target of an ongoing investigation by police into certain drug trafficking. The applicant was then followed by police back to his home. On arrival, the police attempted to intercept him. He shut and locked the front door, however, and prevented the police from arresting him. He subsequently fled through the back of his property and evaded police, at least on a temporary basis.
The police forced entry and found that the applicant had a television displaying live CCTV footage from external cameras surrounding the address. Additionally, the applicant had apparently smashed a number of mobile phones and thrown them into the toilet. Police found a number of Zip Lock bags containing the remnants of a crystal–like substance on the floor surrounding the toilet. There were numerous other empty Zip Lock bags, sets of scales, measuring jugs, empty bottles and assorted drug paraphernalia throughout the house. There was also a large bottle containing partially frozen liquid propped upside down and draining fluid into the laundry sink.
Later that day (6 August 2021), the applicant was seen by surveillance officers leaving his premises. He was arrested and searched. He was found in possession of $1,270.50 cash. This cash formed part of charge 1 (knowingly dealing with the proceeds of crime).
The applicant was taken back to the Sunshine police station. He was interviewed, but gave the police very little information. Police then obtained search warrants for the applicant’s premises and motor vehicle. Upon searching, police found five mobile phones, various quantities of cash totalling $297,550 (the balance of the cash giving rise to charge 1), 8.4 grams of 1,4-Butanediol (the subject of charge 4), a Swann CCTV system, 1.5 grams of cannabis (the subject of Charge 3), a cash counting device, and 13.5 grams of methylamphetamine (the subject of charge 2).
The applicant responded ‘no comment’ to most of the questions in the recommenced record of interview which took place after the search. He did, however, admit staying at the address at which the search had been conducted and having items of property stored there. He was subsequently remanded in custody.
Upon examination of the applicant’s mobile phones, there were a number of telephone calls identified and text messages made between 11 February 2021 and 19 April 2021 which implicated him in the offence of trafficking in 1,4-Butanediol. The communications on the phones involved a person who was then a target of a police operation. It is apparent from the communications, that the target of the operation was purchasing various amounts of 1,4-Butanediol in amounts of 100 millilitres and 2 litres from the applicant, as well as other substances. The applicant would ask the target of that investigation for money to be correctly counted prior to sale, so that he could walk past and exchange the drugs that were being purchased for the cash, through the window of a vehicle.
On occasions, the target of the investigation would pay the applicant sums of between $7,000 and $10,000 at a time in exchange for drugs. The communications on the applicant’s phones showed that he used a counting machine to count the money, and that he was also seeking out new supplies of 1,4-Butanediol. Those communications, coupled with the possession of the 1,4-Butanediol the subject of Charge 4, provide the evidence supporting charge 5 (trafficking 1,4-Butanediol).
At the time of his offending, the applicant was on bail, having been granted bail at the Melbourne Magistrates’ Court on 23 June 2021. He was due to reappear at that court on 31 August 2021 on charges of possessing a drug of dependence and resisting a police officer. That offending occurred on 28 September 2020 and it was a condition of the applicant’s bail for those offences that he reside at a particular address, different from where he was residing at the time he was arrested on 6 August 2021 (charge 8, contravening a condition of bail). It was the applicant’s trafficking of 1,4-Butanediol while he was on bail which gave rise to charge 7 (committing an indictable offence while on bail).
Sentencing reasons
The judge commenced his reasons for sentence by noting that the applicant had pleaded guilty to the offences with which he was charged, and that he had also admitted a prior criminal history, which included the offences of trafficking in drugs of dependence and dealing with property suspected of being the proceeds of crime on two separate occasions.[7] His Honour observed that on 31 January 2019, the applicant received an aggregate term of imprisonment of 118 days and was ordered to complete a community correction order for trafficking in methylamphetamine, other drug possession offences, and dealing with property suspected of being the proceeds of crime.[8] The judge then summarised the offending for which the applicant then fell to be sentenced by his Honour.[9]
[7]DPP v Ellison [2022] VCC 1341, [1]–[3] (‘Reasons’).
[8]Ibid [3].
[9]Ibid [4]–[14].
Next, the judge turned to matters personal to the applicant, referring to a report from a clinical neuropsychologist, Mathew Staios, which had been tendered on the plea; as well as a letter, addressed to the sentencing judge, written by the applicant’s mother.[10] The judge noted that the applicant was 31 at the time of sentencing, and that he had the benefit of a stable and loving family throughout his childhood.[11] The judge summarised the applicant’s education, noting that he went on to complete an apprenticeship as a carpenter, and that he had then worked as a carpenter throughout his adult life until his arrest for the present offences.[12]
[10]Ibid [15].
[11]Ibid [16].
[12]Ibid [17].
The judge referred further to the report of Mr Staios, and the history in that report of the applicant’s alcohol and substance abuse — including a history of the applicant gradually becoming addicted to methylamphetamine, to the point where, at the time of his arrest, he had a daily habit of one gram of methylamphetamine, as well as using GHB.[13] The judge again referred to the applicant’s two prior convictions for trafficking in drugs of dependence: GHB in June 2015; and methylamphetamine in January 2019 — noting again that, on each of those occasions, the applicant was also dealt with for dealing with property suspected of being the proceeds of crime.[14]
[13]Ibid [18].
[14]Ibid [19].
The judge accepted that the applicant suffered from anxiety — although he said that this seemed largely, if not entirely, associated with the applicant’s abuse of illicit substances.[15] The judge did not accept that there was any relevant link between the applicant’s offending and any mental disorder, although he accepted that the applicant had ‘low average or borderline intellectual functioning’.[16] The judge described this as not rising to the levels necessary to apply the principles in R v Verdins.[17] His Honour said that this was not to say that the contents of Mr Staios’s report, and the applicant’s low average or borderline intellectual functioning, was irrelevant. As his Honour put it, ‘far from it, but it does not rise, in my opinion, to the levels necessary to apply the Verdins principles’.[18]
[15]Ibid [20]–[22].
[16]Ibid [23].
[17](2007) 16 VR 269 (‘Verdins’).
[18]Reasons, [23].
The judge referred to three occasions when the applicant had unsuccessfully sought help. He said that, although the applicant’s efforts at rehabilitation on those occasions were ultimately unsuccessful, his conduct in seeking help did not entirely support the proposition that he had a reduced capacity to seek assistance for his conditions.[19] The judge also noted that the applicant’s offending itself required ‘a degree of organisation and consideration necessary to run a business [of drug trafficking] as a middle-man’.[20]
[19]Ibid [24].
[20]Ibid [25]–[26].
The judge referred to a submission made by the applicant’s plea counsel that he should not find that the applicant’s motive for his offending was greed. The judge said, however, that it was clear that the applicant was ‘doing it for profit’.[21] The judge said that it may be that the applicant was initially motivated by maintaining his drug habit, but the presence of $299,000 in the applicant’s possession at the time of offending ‘speaks of at least a degree of profit motivation’.[22]
[21]Ibid [27].
[22]Ibid [27]–[28].
The judge referred to the applicant’s plea of guilty as being very much to his credit — although the judge referred to the evidence against the applicant as ‘quite overwhelming’.[23] The judge said that he gave the applicant ‘full credit for your plea of guilty, particularly in these COVID times’.[24] The judge also noted that the applicant had been in custody on remand ‘during a particularly difficult period within the prison system and would have been the subject of a much more stringent and oppressive regime … than would have ordinarily been the case’. He said that the applicant needed to ‘receive full credit for that’.[25] The judge also said that he must give the applicant full credit for his acceptance of criminal responsibility and the fact that a further period of incarceration would continue to be ‘much more stringent and difficult than is ordinarily the case outside the period of the COVID pandemic’.[26]
[23]Ibid [30].
[24]Ibid.
[25]Ibid [31].
[26]Ibid [32].
While the judge accepted that the applicant’s pleas of guilty were consistent with remorse, he said that he saw little or any evidence of genuine remorse beyond the applicant’s plea. His Honour was not persuaded that the applicant had demonstrated genuine remorse requiring a significant reduction in sentence.[27]
[27]Ibid [33].
Next, the judge said that the applicant’s prospects of rehabilitation would depend upon his ability in the future to beat his drug habit. The judge said that he was not prepared to accept that the applicant represented a good prospect of rehabilitation at this stage.[28] The judge referred to there having been some delay but said that, in the overall scheme of things, a delay of 12 months in disposing of the applicant’s case was not particularly great.[29]
[28]Ibid [35].
[29]Ibid [36].
The judge returned to the issue of Verdins, saying again that the applicant’s mental health and mental impairments did not rise to a level where Verdins could be applied. His Honour then said, ‘although I take into account those that have been identified in the overall synthesis of the facts relevant to sentence’.[30] The judge concluded his reasons for sentence by saying:
Your offending is serious, in particular Charges 1 and 5 are above the lower end of those types of offences, and are within the mid range of offending for offences of trafficking in a drug of dependence simpliciter, and for knowingly dealing in the proceeds of crime.
As has been conceded by your counsel, an amount of some $299,000-odd is substantial. Although it may be that does not all represent profit to you, and that your motivation for drug trafficking and your motivation for committing the offence of possessing proceeds of crime was not that of greed, but rather involved some degree of profit motivation.
It still represents offending above that of the low range of offending, and you having prior convictions on two previous occasions for not dissimilar offending, I am required not just to denounce your conduct, but to impose sentences which deter you and most importantly have a general deterrent effect on others who may be inclined to similar conduct.
There is also an element of protection of the community, where somebody persists after two previous convictions for drug trafficking and dealing in the proceeds of crime. There is a strong public interest in preventing offending of that kind, which represents a scourge on the community.
Nevertheless, I do not regard your prospects of rehabilitation as hopeless. I do not propose to impose a crushing sentence upon you. I must be careful to avoid double punishments, that is, between Charges 1 and 5 in particular, and I am satisfied there is at least some degree of overlap between the offending the subject of Charge 1 and that the subject of Charge 5. Therefore I need not to just avoid double punishment, but to ensure that the totality of the sentence is just in all the circumstances.[31]
[30]Ibid [37].
[31]Ibid [38]–[42].
Applicant’s submissions
In support of his contention that the sentence imposed on charge 1 was manifestly excessive, the applicant referred to the following matters in mitigation:
•his plea of guilty at the earliest possible opportunity;
•the significant utilitarian benefit of the plea of guilty;
•his remorse;
•his prospects of rehabilitation;
•the conditions of his incarceration during the pandemic;
•his mental health and cognitive function; and
•the delay between the offending on 6 August 2021 and sentencing on 15 August 2022.
The applicant also relied upon his ‘positive upbringing and supports in the community, his lengthy history of employment (up until the time of his arrest) and his ongoing issues with chronic substance abuse’.
As to the objective gravity of charge 1, the applicant conceded that the sum of money involved ‘was sizeable’. It was submitted, however, that the offending ought to be viewed against the background of the applicant’s chronic drug habit ‘and not a situation of profit for greed purposes’. The applicant observed that there was no evidence of him living a lavish lifestyle or living beyond his means.
The applicant relied upon two sentencing decisions of the County Court[32] and two decisions of this Court,[33] all decided before this Court’s decision in Worboyes v The Queen,[34] in support of his contention that the sentence on charge 1 was manifestly excessive. As the applicant put it:
Those cases — which all predated authorities concerning sentencing discounts since the pandemic — crystallised that the sentence imposed on this applicant was manifestly excessive when all relevant factors are taken into account.
[32]DPP v Yee [2020] VCC 302; DPP v Tran & Trang [2016] VCC 109.
[33]Truong v The Queen [2017] VSCA 105; DPP v Waterman [2016] VSCA 32.
[34][2021] VSCA 169.
The applicant observed that his conduct throughout the present proceeding has been ‘impeccable’, including his pleading guilty at the earliest opportunity, never having made an application for bail, behaving as a model prisoner, and acting to further his rehabilitation in a custodial setting. Again, it was noted that the applicant had voluntarily sought assistance in the past. In all the circumstances, it was submitted that the sentence imposed on charge 1 was manifestly excessive.
Consideration
In order to succeed on the ground of manifest excess, it must be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[35] As has been said many times before, this is a stringent requirement, difficult to satisfy.[36]
[35]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[36]Ibid.
The sentence on charge 1 was less than 20 per cent of the maximum sentence for that offence. It was imposed in circumstances where the applicant had two relevant prior convictions for dealing with property suspected of being the proceeds of crime. Notwithstanding all of the matters relied upon by the applicant in mitigation of sentence, it simply cannot reasonably be contended that the sentence imposed on charge 1 in the present case (involving as it did a ‘sizeable’[37] sum of money) was wholly outside the permissible range of sentencing options open to the judge. Far from being manifestly excessive, the sentence on charge 1 was modest, if not lenient. The contrary is not reasonably arguable. Moreover, nothing in the authorities relied upon by the applicant in support of his contention of manifest excess gainsays that conclusion.
[37]The applicant’s word.
The judge’s reasons for sentence show that his Honour carefully considered all of the relevant circumstances of the offending and the matters relied upon by the applicant in mitigation. Each of his Honour’s conclusions was well open on the evidence. There is nothing in the material or his Honour’s reasons to suggest that his Honour failed to give proper weight to all of the relevant circumstances of the offending and the offender.
Even if (contrary to what I have said above) it could somehow be concluded that it is reasonably arguable that the sentence on charge 1 was manifestly excessive, there is no prospect that this Court would reduce the total effective sentence imposed by the judge. This provides an additional basis for this Court refusing the applicant’s application for leave to appeal against sentence.[38] Specifically, there is no prospect of this Court reducing the total effective sentence, because the sentence imposed by the judge on charge 5 can only be described as very lenient, and the ordering of a mere 6 months’ cumulation in respect of that charge has produced a total effective sentence that is, by any standards, lenient.
[38]See s 280(1)(b) of the Criminal Procedure Act 2009.
Conclusion
The application for leave to appeal against sentence being devoid of merit, leave to appeal must be refused.
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